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Further Revelations from the Salaita FOIAs

Two weeks ago I wrote a short post for academeblog.org discussing the facts I’d learned by filing Freedom-of-Information-Act (FOIA) with the University of Illinois Urbana-Champaign (UIUC) on the Steven Salaita Affair, a post in which I also considered the follow-up investigations into that Affair by the UIUC Committee on Academic Freedom and Tenure (CAFT) and the American Association of University Professors (AAUP).

I titled this post “Why Salaita Was ‘Un-Hired’: The Missing Facts in the AAUP and CAFT Reports” for a simple reason – the FOIA results I’d obtained at the point of writing my blog post revealed facts that UIUC had never previously made public, nor did they seem to have been reviewed by either the CAFT or the AAUP, since neither group reported them in their analyses of the causes of the Salaita Affair and the appropriate consequences/remedies for UIUC’s actions.

The post drew good comments, some wholly supportive, some politely condemnatory of my view that neither the CAFT nor AAUP seized the power they could have obtained in their reviews, and thereby insufficiently advanced the claim to “shared governance” that both groups espoused. Regarding these comments, while I am never against polite condemnation – what UIUC’s Chancellor Wise would I think label “civil discourse” – I was left arguing that the hundreds of FOIAs I’d filed to that point (as single question FOIAs) could after all only provide what they could provide, rather than what readers might have wished for. Which is to say, those documents would only reveal what the university decided to disclose. And that, even from that set of documents I got the picture of incomplete data-gathering by the CAFT/AAUP.

A week after my posting I got a FOIA set that provided emails that far advanced the issues I’d raised in the posting – perhaps the Gods were smiling on me, perhaps (on a conspiracy theory) UIUC decided the emails they provided would come out eventually, so why not disclose them a year after the Salaita Affair, right after spring semester had ended, and right before Memorial Day and summer. Which is to say, at a time when the most people wouldn’t be paying attention.

I’ve provided discussions of some of these emails on samizdat-startups.org; what I’d like to do here is to provide a quick summary of what these emails (the ones on samizdat-startups.org and also the others in the FOIA result) reveal:

FIRST, the absence of these emails from the 1,600 pages of FOIAed materials produced by UIUC in 2014 stinks of malfeasance by UIUC. There were 27 FOIA requests to UIUC in 2014 for information on the Salaita Affair; UIUC responded to the 12 it said were not unduly burdensome, for a total production of about 1,600 pages of emails. None of the most recent emails I obtained were present in these earlier FOIAs, and most of them are clearly related to the Salaita Affair. So why didn’t UIUC produce them until now? This certainly has every appearance of malfeasance on UIUC’s part.

SECOND, the CAFT Report asserted Chancellor Wise made her decisions in a vacuum of faculty involvement; the new emails strongly contradict this theory. One recurrent theme in the Salaita Affair is that Chancellor Wise did her decision-making without consulting faculty, actions that indicate a lack of shared governance between UIUC administration and faculty that both the CAFT and the AAUP rightly deplore.

The new emails provide strong evidence against this theory – specifically, there are emails even on the day of the un-hiring (July 24, 2014) between Wise and the UIUC Provost (Ilesanmi Adesida) and two senior UIUC faculty members (Nick Burbules and Joyce Tolliver) regarding the Salaita Affair. While none of these emails reveal that Wise was consulting with any of these individuals on specific hiring decisions about Salaita, they clearly contradict the idea that Wise was acting in a vacuum of faculty involvement.

THIRD, these emails again raise the question of exactly what documents the CAFT subcommittee reviewed in reaching its conclusions. Academics are usually the first to provide copious footnotes, including footnotes to sources reviewed. The CAFT Report provides only two indications of documents they saw – 1) an interview with Chancellor Wise; and, 2) documents they provided in the appendix to their report that UIUC provided.

The most recent FOIA results contain documents that it would seem the CAFT subcommittee never saw, at least judging by their conclusion of Wise’s non-consultation with faculty. How did this happen? What’s the reasonable standard of care that CAFT should be held to in terms of actual “investigation?” While some comments to my previous post on academeblog.org suggested that I was overly harsh regarding the CAFT Report, I query whether “good intentions” is a sufficient standard of care for an investigation.

I will conclude by saying that the most recent FOIA results are hardly the end of what remains to be learned. There are probably 30 to 40 more FOIAs that should be filed to obtain additional clarity – e.g., all emails sent by Adesida, Burbules, Tolliver during Salaita Week (July 21 to July 25). Or, for that matter, emails sent by those and other involved individuals from July 21 to at least August 1.

Given this opportunity, I wonder who would like to step up to the plate and do these filings. At present samizdat-startups.org has now been twice denied “news-media” status by the Illinois Attorney General’s office (see 2015 PAC 33323 and 2015 PAC 35187/35393), for reasons that have become so incoherent that I continue to be amazed that even the senior personnel of the AG’s office haven’t yet sat up and taken notice.

But the result of that lack of “news-media” status is that samizdat-startups.org faces a 2-3 month delay in production on any and all FOIA filings it makes.

I hope that employees at public higher education institutions have understood that FOIAs will reveal almost anything they ever created as emails in their official employee email accounts.

And don’t think that because emails were “deleted’ that they were destroyed. Because of a Supreme Court decision a few years back, employers are careful to archive several years of email history for discovery under litigation — and I don’t think any of us know a college or university that isn’t currently being sued by someone now or in the recent past.

That’s an interesting postulate. If you look on samizdat-startups.org a number of posts ago I put up an article I wrote on the spoliation (destruction) of evidence that could easily occur at UIUC. Specifically, FOIA requests to UIUC go to individuals who the FOIA office thinks might have the information; as far as I can tell there’s no oversight of what they convey (or don’t) to the FOIA office.

Anyone with any brains at UIUC will simply put the emails they don’t want found into their trash … and then empty trash. Then when they are stuck responding to a FOIA they can, with a straight face, say “well I gave you everything I had,” since they can’t get the trash back.

Does UIUC archive documents? Well, they do, for some unnameable period. Go read what I’d written earlier.

Oh and BTW, if you want to hear something hilarious, the UIUC archives contacted me a few days ago, seems they can’t get the FOIA productions from UIUC, so they asked if *I* would provide them. I said, sure, just put them up for public consumption ASAP, and call them the “Scheinman Archives.”

SUNY campuses essentially have automatic e-discovery on their systems — nothing disappears for years — because it’s the simplest way to comply with the court rules in the context of the regular ongoing litigation against the university campuses and system. Faculty might profit from reading the litigation costs in their institution’s annual report and audit — but keep in mind that Illinois like New York, but by no means all states, indemnifies state actors and the state attorney general defends all state agents at the taxpayer’s expense, so that cost doesn’t appear on the university’s ledger (cf. http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=116&ChapterID=2).

Thus, no one in UIUC administration had or has any need to fear personal responsibility for his/her actions, no matter how discriminatory they may be.

Have no illusions: suing a public university in Federal court can be a decade-long endeavor — and the university’s defense that whole time in some states is charged to the unsuspecting taxpayers.

With this latest batch of e-mails, I think you’ve done an excellent job in showing that the Chancellor misled the CAFT committee, by failing to disclose that she had reached out both to the Provost and to two faculty members from the Senate Executive Committee, as she was making her decision.

That said, it seems to me that the word “consultation” is causing mischief here. You say this shows “faculty consultation” and that the decision wasn’t made in a vacuum. But I think that both CAFT and most faculty members would still say that reaching out to Burbules and Tolliver was not consultation in the sense meant by shared governance. Indeed, as the e-mails you have gotten show, it was an attempt to get around consulting the proper officials (the deans) and the proper experts (the tenure committees and the Department of AIS). I would still think most people would see this as a decision made without consultation in the spirit of shared governance, and without the engagement of relevant faculty expertise. (It’s curious to note that Burbules makes this point recently, saying that since August he has publicly regretted the Chancellor did not contact people closer to the case (in expertise and authority) than him. I guess my question for him would be, and did you say that privately to the Chancellor, when it mattered? The e-mails you’ve printed seem to suggest not, that he was just happy to be in the secret circle; which of course makes his public statements now that it doesn’t matter mean a lot less.

I don’t mean the following to be at all sarcastic–since I think you’ve done a real public service here — but I think the Chancellor would be thrilled if talking to Burbules and Tolliver in camera, about crisis management strategies (rather than issues of principle or governance), could be seen as counting as consultation. That would get her off the hook. Evidently, however, she doesn’t think that will fly, and ironically in that last SEC meeting she even tried the ridiculous claim that she didn’t disclose the involvement of the Provost, Burbules, and Tolliver because she didn’t think that counted as consultation. But in this case, when CAFT asked if she had consulted with faculty, it’s clear they meant had she asked anyone at all. They wanted the whole story. She gave them little bits. You’ve pulled some more of it out, and in doing so have helped us see the deceptions, which certainly matter.

But all that said, I still think the key point should not be lost that while individuals were contacted in an ad hoc manner, formal consultations were not conducted, resulting in a decision that violated procedures on several levels.

Your comment is spot-on: It isn’t “consultation” unless it is consultation with faculty representative bodies made up of representatives — and representatives who are elected by faculty (at departmental, faculty senate, etc. levels) – not appointed by the administration.

Even in Wise’s own view *none* of this was “consulting,” since it didn’t rise to her high standards of consultation. Apparently she was just palling around with Adesida, Burbules, Tolliver etc.

My own statements have *not* been that these conversations were remotely adequate to Wise exercising her responsibilities — at this point that’s a dead horse anyway, since Wise herself freely admits she didn’t appropriately discuss the decision. My statements on these recent emails were that they contradicted Wise’s claims not to have talked to anyone, what the CAFT labeled “discussion in a vacuum.”

As far as whether she talked to the deans or anyone else, you know what, until someone FOIAs all the emails Wise sent from July 25 to August 1 we don’t know who else she emailed … if I do that it’ll take 3 months for me to get a response since I’m a “recurrent requester” under Illinois law.

ITW, would you be willing to file those FOIAs? If you do, file on emails sent by Adesida, Pratt-Clarke and Burbules and Tolliver in that same time-period.

I don’t even remotely claim to have exhausted the possibilities of the fresch

I don’t think that it has been proven or even evidence presented that there was a violation of procedure What’s the procedure for a Chancellor to forward a dean’s recommendation to hire to the board with a “I do not agree” rather than a “I do agree”? Where can I find a copy of this procedure to determine if there was a violation. As far as I know there is no procedure. Unless some procedure is produced most likely she can consult with whomever she wants about whatever she wants to determine whether to recommend or not recommend.

Wise’s mistake throughout has been to confuse the hiring procedure at the faculty search committee level with the procedure at the board level. There is clearly a series of steps with the hiring committee and the dean’s approval being the first two.

The ad-hoc hiring committee actually sorted through exactly these issues rather well. There is not procedure for the Chancellor to not forward the recommendation, because that is not a part of how her power has been understood according to the wording of the traditional statutes. Now, some Senate figures have opined, in an equally ad hoc way, that this is confusing and that therefore new procedures have to be written. But if that’s you, CD-Host, I would note that said panel is the only officially organized body to have ruled on the matter. So, in other words, its fact finding should have standing (and indeed was recognized by vote by the Senate), whereas opining by SEC members does not count as ruling or clarification.

Alas, Mr. Scheinman, I can’t file the FOIAs, because I work for the University and can’t afford it politically. But I’m grateful to you for doing so, though we disagree on how to word the results. My only concern is that, in contradicting CAFT, we not leave the impression that consulting in the sense of shared governance actually happened, or that relevant faculty expertise was engaged. They weren’t, I still think.

First off the link is to a new procedure. I’m not questioning that UIUC’s process was terrible and those are nice partial fixes. Though they do leave the ambiguity in place…. in particular the Board can’t delegate away its power unless it grants the power to form binding contracts to the bureaucracy. The Board has to stop being in the process on an individual basis, act more quickly on hires or just make official the unofficial policy that while they generally won’t get involved they reserve the right to get involved and once in a while the distinction between a letter of intent and a contract will be made clear.

As far as the specific issue. Wise may or may not have had the right to not forward a recommendation, forgetting University Policy I think that the letter of intent clearly indicated that the Board would be notified so I’m I suspect she didn’t have the right to not forward without Salaita’s approval. But while she originally claimed she wasn’t going to forward, very quickly she reversed herself and did forward the recommendation to the Board. So there is no violation of procedure. She had to forward the recommendation to the Board and she did forward the recommendation to the Board. There is no requirement that she can’t believe and communicate that the department’s evaluation was incorrect and be overturned.

Well, if you actually read the link in question, you’ll note that the recommendation was to continue existing procedure. So it’s not about fixes or future policy, per se, as honoring what had been both the letter and the practice at Illinois. I don’t see any other way of reading that report.

Second, Wise did not officially reverse herself quickly. She reversed herself just before the board meeting, at the very last possible moment, without prior public warning or notifying any of the other participants of her intention to sabotage the recommendation. As to the absence of requirement to not do something, now we’re getting into Thomas Aquinas territory; if rules have to list specifically everything people are not to do, they would get quite long. Yet even granting that the Chancellor has the right to express an opinion when forwarding the motion, the clearest obligation is to submit the recommendation as made. Here it was cancelled, then left hanging for six weeks, then snuck into the agenda and sabotaged in one quick move. Hardly a good faith effort at doing the thing required.

— you’ll note that the recommendation was to continue existing procedure.

No it isn’t. The recommendation was that the board delegate its authority entirely.

— or notifying any of the other participants of her intention to sabotage the recommendation

How did she “sabotage the recommendation”? The Board was aware that the hiring committee had chosen Salaita and that assistant dean had concurred. She didn’t sabotage the recommendation, she disagreed.

You can’t have it both ways. Either the Chancellor if they believes the hiring committee and the dean erred
a) has to have the authority to kick it beck to them that is not forward to the board
b) has to right to inform the Board of their disagreement and kill the hiring at the Board level
c) The Chancellor plays no role and Assistant Deans have full contracting authority for faculty.

(c) is a huge change in policy. Which means either (a) or (b) is the case. (a) was her refusing to forward, (b) was her forwarding with her own disagreement appended.

— the clearest obligation is to submit the recommendation as made.

I would agree. I think she mostly did that, she submitted to the Board. She did err in believing she had the authority not to forward but she didn’t fail to forward the recommendation she did in fact forward the recommendation.

— Hardly a good faith effort at doing the thing required.

How is that bad faith? Do you really believe that Wise knew she was obligated to forward and claimed that she wasn’t going to despite that knowledge?

Oh we both agree that “consultation” as anyone with any brains understands the word certainly didn’t occur. On the other hand, we can also agree that Wise was palling around with a lot more people than she ever admitted, or the CAFT ever found — and I still fault the CAFT for not having either done a real job of ferreting out information, or, failing that, of copiously citing to the ABSENCE of information that they had.

Actually, you CAN file FOIAs, just do it anonymously, which is completely allowed under Illinois law and which happens at UIUC all the time. Just create a separate email account, google works fine, then file with UIUC FOIA, and, if you’d like, forward the results to me and I’ll put them up.

There are various additional means for anonymity, e.g., use a paid VPN service and the TOR browser … I’ll be happy to put up more details, perhaps academeblog would be willing to host the article.

The only thing I’ll say in advance is that the way the FOIA process at UIUC works is that the FOIA office sends the requests to actual people to have them cull the information, so although it is indeed a right of the citizenry, it still comes with a real responsibility to file for good reasons, not just because you can.

I don’t accuse you or anyone else of bad motives, I just want to point out that the larger goal here — the CIVIL goal — is to demonstrate citizen power in a responsible way.

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